Citation Nr: 0917832
Decision Date: 05/12/09 Archive Date: 05/19/09
DOCKET NO. 95-30 381 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
Entitlement to service connection for fibrocystic disease.
ATTORNEY FOR THE BOARD
Gina E. Fenice, Associate Counsel
INTRODUCTION
The Veteran served on active duty from January 1989 to
November 1993.
This case comes before the Board of Veterans' Appeals (Board)
on appeal of a June 1994 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in New York, New
York. Jurisdiction over the case was subsequently
transferred to the RO in Winston-Salem, North Carolina.
When this case was most recently before the Board in June
2006, it was remanded in part and decided in part. It has
since returned to the Board for further appellate action.
FINDING OF FACT
The Veteran's fibrocystic disease was not present in service
and is not etiologically related to service.
CONCLUSION OF LAW
Fibrocystic disease was not incurred in or aggravated by
active duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002);
38 C.F.R. § 3.303 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA), codified
in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 &
Supp. 2008), and the pertinent implementing regulation,
codified at 38 C.F.R. § 3.159 (2008), provide that VA will
assist a claimant in obtaining evidence necessary to
substantiate a claim but is not required to provide
assistance to a claimant if there is no reasonable
possibility that such assistance would aid in substantiating
the claim. They also require VA to notify the claimant and
the claimant's representative, if any, of any information,
and any medical or lay evidence, not previously provided to
the Secretary that is necessary to substantiate the claim.
As part of the notice, VA is to specifically inform the
claimant and the claimant's representative, if any, of which
portion, if any, of the evidence is to be provided by the
claimant and which part, if any, VA will attempt to obtain on
behalf of the claimant. Although the regulation previously
required VA to request that the claimant provide any evidence
in the claimant's possession that pertains to the claim, the
regulation has been amended to eliminate that requirement for
claims pending before VA on or after May 30, 2008.
The Board also notes that the United States Court of Appeals
for Veterans Claims (Court) has held that the plain language
of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to
a claimant pursuant to the VCAA be provided "at the time"
that, or "immediately after," VA receives a complete or
substantially complete application for VA-administered
benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119
(2004). The Court further held that VA failed to demonstrate
that, "lack of such a pre-AOJ-decision notice was not
prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as
amended by the Veterans Benefits Act of 2002, Pub. L. No.
107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n
making the determinations under [section 7261(a)], the Court
shall . . . take due account of the rule of prejudicial
error")." Id. at 121. However, the Court also stated that
the failure to provide such notice in connection with
adjudications prior to the enactment of the VCAA was not
error and that in such cases, the claimant is entitled to
"VCAA-content complying notice and proper subsequent VA
process." Id. at 120.
The timing requirement enunciated in Pelegrini applies
equally to the initial-disability-rating and effective-date
elements of a service-connection claim. Dingess v.
Nicholson, 19 Vet. App. 473 (2006).
In the case at hand, the Veteran's claim was received and
initially adjudicated long before the enactment of the VCAA
in November 2000. The reflects that the Veteran was provided
the notice under the VCAA by letters mailed in May 2004 and
August 2006. Although the Veteran was not provided complete
notice until years after the enactment of the VCAA, the Board
finds that there is no prejudice to her in proceeding with
the issuance of a final decision. See Bernard v. Brown, 4
Vet. App. 384, 394 (1993). In this regard, the Board notes
that following the provision of the required notice and the
completion of all indicated development of the record, the
originating agency readjudicated the Veteran's claim. There
is no indication in the record or reason to believe that the
ultimate decision of the originating agency on the merits of
the claim would have been different had complete VCAA notice
been provided at an earlier time. See Overton v. Nicholson,
20 Vet. App. 427, 437 (2006) (A timing error may be cured by
a new VCAA notification followed by a readjudication of the
claim).
Moreover, as explained below, the Board has determined that
service connection is not warranted for fibrocystic disease.
Consequently, no disability rating or effective date will be
assigned, so the failure to provide earlier notice with
respect to those elements of the claim is no more than
harmless error.
The Board also notes that the Veteran has been afforded
appropriate VA examinations and service treatment records and
pertinent post-service medical records have been obtained.
The Veteran has not identified any outstanding evidence, to
include medical records, that could be obtained to
substantiate the claim. The Board is also unaware of any
such outstanding evidence.
In sum, the Board is satisfied that any procedural errors in
the originating agency's development and consideration of the
claim were insignificant and non prejudicial to the Veteran.
Accordingly, the Board will address the merits of the claim.
Legal Criteria
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R.
§ 3.303. Service connection may be granted for any disease
initially diagnosed after service, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
Except as otherwise provided by law, a claimant has the
responsibility to present and support a claim for benefits
under laws administered by the Secretary. The Secretary
shall consider all information and lay and medical evidence
of record in a case before the Secretary with respect to
benefits under laws administered by the Secretary. When
there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, the Secretary shall give the benefit of the doubt
to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §
3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53
(1990). To deny a claim on its merits, the evidence must
preponderate against the claim. Alemany v. Brown, 9 Vet.
App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.
Analysis
The Veteran contends that she is entitled to service
connection for fibrocystic disease as she believes this
condition is related to the in-service findings of lumps of
her breasts.
The Veteran's service treatment records indicate that the
Veteran was treated for a number of gynecological conditions
while in service, and note the presence of lumps in the right
breast in May 1991. There was point tenderness, but no
discharge. The Veteran indicated that she had had a knot in
her breast before. Symptoms included a tender lymph node on
the right breast anterior/axillary line, and radiating pain.
However, no abnormality of her chest or breasts was found on
the examination for separation from service.
The Veteran was afforded a number of VA gynecology
examinations with respect to her breast condition. In a May
1994 VA examination, no abnormalities of the breast were
found. During an April 2000 VA examination the examiner
noted a history of fibrocystic breast changes, but indicated
that the Veteran had not received surgery for this condition.
Upon physical examination, the examiner observed that the
Veteran's breasts were symmetrical and without masses. The
conclusion was a normal gynecological examination. In
December 2005, a VA gynecology examination revealed
abnormalities of both breasts, which the examiner assessed as
fibrocystic tissue disease. The examiner also noted that the
Veteran had received ultrasound and mammography testing at
Duke University in July 2005, the results of which were
negative.
In December 2008, the Veteran was afforded another VA
gynecology examination to determine the nature and etiology
of any present breast condition. The examiner reviewed the
Veteran's claims files, and indicated that the Veteran was
found to have a right breast cyst during a normal breast exam
in service, and a mammogram showed fibrocystic tissue. A
breast examination revealed diffuse nodularity, tenderness,
and axillary lymphadenopathy of the left and right breasts.
A mammography demonstrated dense tissue of both breasts and a
stable 8 millimeter round lymph node with a circumscribed
margin in the right breast. There was no mammographic
evidence of malignancy. An ultrasound of the right breast
confirmed the presence of a mass in the right breast,
consistent with the stable lymph node seen at mammography.
The Veteran was diagnosed with a fibrocystic breast
condition. After a review of the Veteran's service records,
personnel records, private records, and present research, the
examiner found no reason to suggest the Veteran's fibrocystic
breast condition is related to her service. The examiner
explained that fibrocystic breast conditions are common and
benign conditions found in many women, and it is generally
thought to be hormonally related. She also pointed out that
there is no suggestion that service in any way could have
caused or worsened this condition.
Based on the foregoing evidence, the Board finds that the
Veteran is not entitled to service connection for her
fibrocystic breast condition. There is no competent evidence
of this disorder in service or of a nexus between this
disorder and service. In addition, the Board has found the
December 2008 VA medical opinion to be highly probative
evidence against the Veteran's claim, as it was based on a
review of the Veteran's claims files and supported by sound
rationale.
In essence, the evidence of a nexus between the Veteran's
current fibrocystic breast disease and her active duty
service is limited to the Veteran's own statements. This is
not competent evidence of the alleged nexus because the
Veteran, as a lay person, lacks the medical expertise
required to render this opinion concerning medical causation.
See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).
In reaching this decision, the Board has determined that the
benefit-of-the doubt rule is not applicable to this claim
because the preponderance of the evidence is against the
claim.
ORDER
Entitlement to service connection for fibrocystic disease is
denied.
____________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs